Kawaljit Singh and Others vs Harbhajan Singh and Others

Kamlesh Sharma, J.—Petitioners-Defendants are successors-in- interest of late Kartar Singh Duggal and Respondents Plaintiffs are the successors-in-interest of late Mool Singh. Respondents-Plaintiffs filed civil suit for specific performance of agreement dated 10-1-1958 whereby late Kartar Singh Duggal had agreed to sell the property to late Mool Singh bearing evacuee No. 131/A, measuring 2534 Sq. yards situated in Garden View, Cart Raod, Shimla, for a total consideration of Rs. 4,837/8 annas out of which an amount of Rs. 2500/- was paid as earnest money.

The Petitioners-Defendants resisted the suit on the ground that the agree ment was illegal, void and inoperative. According to them, it was an act of undue influence, mis-representation of fact and fraud. Petitioners, who were Defendants No. 1 to 4, including Avtar Singh Duggal son of Kartar Singh Duggal, who has since died, took up the stand in paragraph-3 of their written statement that sale consideration as claimed by the Plaintiffs is not just and equitable and no such payment was made to late Kartar Singh Duggal towards sale consideration. It is also pointed out that late kartar Singh Duggal could not enter into an agreement for sale as he himself was not the owner at the time of execution of the said agree ment. According to them, the Plaintiffs being non-agriculturists were not eligible to acquire the suit property in the State of Himachat Pradesh Similarly, the Petitioners, who were Defendants No. 5 to 7 in the suit, raised one of the preliminary objections besides Ors. that the agreement to sell was void for uncertainty and its enforcement would be against public policy and law. Even if it is proved to have been executed it is highly unfair and oppressive. The plea of delay and laches was also taken as Kartar Singh Duggal has died in 1970 whereas the suit was brought in 1987. In reply to Paragraph-3 of their written statement it is stated that, "In action on the part of Shri Mool Singh is also a strong circumstance to infer that there was no agreement and even if there was any, the was ob tained by him by deceiptful means and mis-representation."Therefore. from the perusal of the written statement it is clear that the Petitioners-Defendants have not denied the execution of the agreement to sell and have not taken the stand that it does not bear the signatures of late Kartar Singh though the photo-copy of agree ment to sell was filed alongwith plaint which bears the signatures of late Kartar Singh Duggal as well as his son the original Defendant No. 2 Avtar Singh Duggal.

Admittedly, the trial of the suit is at the final stage and the Petitioners- Defendants closed evidence on 4-7-1995. Thereafter, they filed an application for additional evidence under Order 18 Rule 17 CPC which was dismissed on 8-4- 1996 and the CMI Revision preferred by them in this Court was withdrawn on 7-11-1996. The Petitioners Defendants also filed further application under Order 6 Rule 17 CPC for amendment of the written statement to specifically deny the execution of the agreement to sell by late Kartar Singh Duggal in favour of late Mool Singh and to take the plea that the document of agreement to sell appears to be forged with an ulterior motive to grab their property as it does not bear the signatures of late Kartar Singh Duggal. The reason for moving such an application at such a late stage was that they were not conversant with the signatures of late Kartar Singh Duggal and had come to know the same when one of them had inspected the records of Rehabilitation Department on 25th July, 1995, in order to move the ap plication for obtaining certified copies of some documents to be filed alongwith their application for additional evidence under Order 18 Rule 17 CPC The said application for amendment of written statement under Order 6 Rule 17 CPC was dismissed on 12-3-1997. Hence, the present revision petition.

This Court has heard learned Counsel for the parties and gone through the record. No doubt the Court has very wide powers in allowing the amendment of pleadings if such amendments are necessary for the purpose of determining the real question in controversy between the parties and in the case of written state ments, the Courts are very liberal in allowing the amendment yet at the same time such amendment of pleadings cannot be allowed as to change the very nature of the case by introducing altogether a new cause of action or the subject matter of the controversy in suit. It is permissible to a party to take alternative or consistent pleas and either to withdraw or explain its admission originally made but it cannot completely change the nature of their original pleadings by introducing altogether a new case by way of amendment. See Modi Spinning and Weaving Mills Co. Ltd. and Another Vs. Ladha Ram and Co., Haji Mohammed Ishaq Wd. S.K. Mohammed and Others Vs. Mohamad Iqbal and Mohamed Ali and Co., and Bansi Lal Ganpat Rai Vs. Bhoj Raj and Another, So far, the case in hand is concerned, no doubt by way of amendment only an alternative plea is intended to be taken that the agree ment to sell was not executed as it does not bear the signatures of late Kartar Singh, which was not specifically taken in the first instance and it would have been allowed in the normal course but being malafide and preferred when the suit is at the final stage of argument after protracted trial for about 10 years it has rightly been rejected by the trial Court. It does not lie in the mouth of Petitioners-defen dants that they were not conversant with the signatures of late Kartar Singh who was their father/grand father and they could not verify his signatures before 25th July, 1995 when one of them inspected the records of Rehabilitation Department wherein they found the signatures of late Kartar Singh. It is not in dispute that a photocopy of agreement to sell was already filed by the Respondents-Plaintiffs alongwith their plaint which bore the signatures of late Kartar Singh Duggal as well as original Defendant No. 4 Avtar Singh Duggal yet in the written statement filed by original Defendants No. 1 to 4 the stand was not taken that the agreement to sell in question was not executed and the signatures thereon are not of late Kartar Singh Duggal. At least original Defendant No. 4 Avtar Singh Duggal who was present at the time of execution and had signed the agreement to sell could take this plea. Even when one of the Respondents-Plaintiffs appeared as PW-1 and stated that the agreement to sell was signed by late Karter Singh Duggal and Avtar Singh Duggal he was not cross-examined that signatures were not of'' late Kartar Singh Duggal and Avtar Singh Dugga. Similarly, witnesses PW-3 and PW-4 who identified the signaturesof other witnesses to the agreement to sell were also not cross-ex amined to deny the signatures of late Karter Singh Duggal and Avtar Singh Dug- gal. For the first time, this plea was taken when DW-1 was examined on 4-7-1995. It may be pointed out that in the meantime Kartar Singh Duggal had also died, which belies their averment in the application that they had verified the signa tures of Kartar Singh Duggal from the record of Rehabilitation Department when one of them inspected it on 25-7-1995. It may be pointed that in the meantime Avtar Singh Duggal was no more, who during his lifetime, neither denied his signa tures nor that of late Kartar Singh Duggal, his father. Further the application for ad ditional evidecne under Order 18 Rule 17 CPC was dismissed on 8-4-1996. In this background, this Court has no hesitation to hold that the applications for amend ment of written statement of Petitioners-Defendants are not bona fide and their only purpose is to delay the trial of the suit which is pending since 1987. There fore, the trial Court has rightly rejected the applications for amendment of written statement.

Learned Counsel appearing for the Petitioners-Plaintiffs has relied upon the judgment of this Court in Shri Purshotam Dass and Anr. v. Smt. Shakuntla Devi and Ors. 1994 (2) Shim. L.C. 459 which reiterates the proposition that admis sion made by a party may be withdrawn and may be explained away, with which there is no dispute. Learned Counsel has also referred to a judgment of Supreme Court in Akshaya Restaurant Vs. P. Anjanappa and Another, wherein the learned Judges have again reiterated that admission in the pleadings can be explained and inconsistent pleas can be taken in amendment petition which is also a settled proposition of law but the ratio of these judgments are not applicable to the facts and circumstances of the present case as discussed hereinabove. The learned Counsel referring to Anr. judgment of this Court in Han Dass and Ors. v. Kali Dass 1979 Shim. L.C. 157 has further submitted that while considering the application for amendment the Court is not supposed to go into the alleged falsity of the case nor to give its findings on merits of amendment as has been done by the trial Court. There is no substance in this submission as the trial Court as well as this Court has considered the context in which the ap plications for amendment were filed to give its findings that these are not bona fide having been filed at the final stage of the trial which has been continued for the last more than 10 years.

In the result, there is no merit in this revision petition and it is rejected. No order as to costs.